STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD N. CAPPS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2513

)

DEPARTMENT OF BANKING AND )

FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 16, 1990, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gerald N. Capps, Esquire

801 Arthur Godfrey Road Miami Beach, Florida 33140

For Respondent: Randall J. Rubin, Esquire

Office of the Comptroller

401 N.W. Second Avenue Suite 708-North

Miami, Florida 33128-1796 STATEMENT OF THE ISSUES

The issue is whether Gerald N. Capps is entitled to receive the proceeds from a cashier's check drawn on Merchants Bank of Florida on the amount of

$400.00 which had been forwarded to the Comptroller as abandoned property.

PRELIMINARY STATEMENT

At the hearing the only witness was the Petitioner. The Petitioner also offered an exhibit and the Respondent offered a composite exhibit. Following the hearing the parties were afforded an opportunity to file proposed recommended orders. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposed findings are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On or about June 30, 1989, First Union National Bank of Florida submitted a remittance report of unclaimed money items to the Department of Banking and Finance. It listed Gerald N. Capps as the payee for the amount of

   $400.00.

   
   

2. On or about November 7, 1989, the Petitioner filed a claim to the abandoned property.

   
   

3. In processing the claim, the Department requested the bank to provide it with a copy of a signature control card for the account; however, First Union Bank could not do so.

   
   

4. The subject cashier's check is drawn payable to Gerald M. Capp (in the singular); however, the Petitioner's name is Gerald N. Capps (plural).

   
   

5. The Petitioner had a banking relationship with the Bank of South Miami in the 1970's. He believes that bank later became the Merchants Bank of Miami, on which the subject cashier's check is drawn. It is not uncommon for the Petitioner's name to be misspelled by either omission of the final "s" or by substitution of a "k" for the initial "c."

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

7. Section 717.126, Florida Statutes, states in pertinent part:

   
   

   In any proceeding for determination of a claim to property paid or delivered to the department under this chapter, the burden shall be upon the claimant to establish entitlement to the property by a preponderance of evidence.

   
   

8. The definition of the term "preponderance of evidence" in Black's Law Dictionary, 5th Edition, includes the following:

   
   

   Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Brand v.

   Kinchen, La.App., 310 So.2d 657, 659.

   
   

9. On the facts established in the case, it cannot be said that it is more probable than not that the Petitioner is the person entitled to the funds claimed in this case. There is no evidence as to who caused the check to be drawn and, therefore, no evidence of any relationship between that person and the Petitioner. The name of the payee on the check is slightly different from the Petitioner's name. No inferences helpful to the Petitioner can be drawn from the Petitioner's prior banking relationship with the Bank of South Miami because there is no persuasive proof that the Bank of South Miami was the

predecessor of the Merchants Bank of Miami. Finally, the Petitioner had no explanation as to why anyone might have caused the check to be drawn in his favor, the sole basis for his claim being the similarity of names.

RECOMMENDATION

On the basis of the foregoing, it is recommended that the Department of Banking and Finance issue a final order in this case denying the Petitioner's claim.

RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of September 1990.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of September 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2513

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraphs 1 through 5: Rejected as constituting unnecessary procedural details, statements of position or argument.

Paragraph 6: Accepted in substance.

Paragraph 7: Rejected as constituting unnecessary procedural details, statements of position, or argument.

Paragraph 8: Accepted in substance.

Paragraphs 9 and 10: Rejected as constituting argument or ultimate conclusions, rather than findings of fact.

Findings proposed by Respondent: Paragraphs 1 through 3: Accepted.

Paragraph 4: Rejected as subordinate and unnecessary details. Paragraph 5: Accepted.

Paragraphs 6 and 7: Rejected as constituting subordinate and unnecessary details or as argument.

COPIES FURNISHED:

Gerald N. Capps, Esquire 801 Arthur Godfrey Road Miami Beach, Florida 33140

Randall J. Rubin, Esquire Office of the Comptroller

401 N.W. Second Avenue Suite 708-North

Miami, Florida 33128-1796

The Honorable Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32399-0350

William G. Reeves General Counsel

Department of Banking and Finance The Capitol

Plaza Level, Room 1302 Tallahassee, Florida 32399-0350

Docket for Case No: 90-002513

Orders for Case No: 90-002513